The No-Nonsense Guide to the Michigan Freedom of Information Act (FOIA)

The No-Nonsense Guide to the Michigan Freedom of Information Act (FOIA)
The No-Nonsense Guide to the Michigan Freedom of Information Act (FOIA)
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Foreword

The Michigan Freedom of Information Act, and its companion the Michigan Open Meetings Act, were passed in 1976 in the wake of the Watergate scandal, led by the efforts of the late Rep. Perry Bullard. The laws provide citizens with the right to examine and view the workings of their government and to examine the records that it produces.

This guide was written from 2012 to 2014 and is based in part on a series of articles written for AnnArbor.com during 2010 and 2011 and a similar series for the Damn Arbor weblog in 2013 and 2014. It illustrates in plain language how and why you might use FOIA laws to obtain government documents. The guide should be useful for people involved in the political process, as well as for businesses that work or want to work on government contracts. From fixing a broken sidewalk to obtaining a crime report, the Michigan Freedom of Information Act is a versatile tool to ensure that you are not ignored when it is your turn to deal with City Hall.

To whatever extent possible, this work also makes comparisons with other state FOIA laws as well as the Federal FOIA statutes. The basic recommendations that don’t depend on particular statutes are all very reusable, and it is hoped that this guide has wide appeal beyond the boundaries of the Great Lakes State.

Outline

Chapter 1 introduces with Michigan Freedom of Information Act with a sample FOIA request, illustrating the basic elements of such a request. Chapter 2 follows with a list of the types of information that you might be interested in getting through the FOIA process. Chapter 3 addresses fees for FOIA requests and makes practical suggestions on how to minimize your costs. Chapter 4 looks at how to make your FOIA request go through the system quickly, and looks at delays in the process that you can avoid.

Not every FOIA request is successful on the first try, and it is important in your use of the FOIA process to know how to appeal a rejected request. Chapter 5 looks at exemptions written into the Michigan FOIA laws that allow a government to refuse to provide records that it holds. Chapter 6 discusses the appeals process, and provides a sample FOIA appeal for a rejected request. Chapter 7 looks at how you can rewrite a rejected request to get a positive answer for a modification of your original request, and Chapter 8 looks at some cases where organizations have gone to court to pursue their appeals through the judicial system.

Chapter 8x illustrates the defensive side of the Freedom of Information Act, and is designed for public officials in public bodies that wish to withhold, obstruct, or deny access to public records all within the scope of the law. Followed scrupulously, these tactics can frustrate and intimidate potential public records requesters and keep public records private.

Closely related to the Michigan FOIA laws is the Michigan Open Meetings Act, which ensures that meetings of public bodies are conducted in public. Chapter 9 looks at the practical aspects of open meetings laws, and Chapter 10 looks at remedies that you can pursue if you believe that a meeting has been held out of the public eye.

You’ll find lists of organizations that support the Freedom of Information Act in the appendix, as well as a list of exercises suitable for groups looking to test or audit the FOIA behavior of a public body.

About this edition

This is an early draft of the book. The basic outline is complete, but several chapters are nearly empty, and others are partially complete. Only a few people have seen the manuscript, and the bits that are specific references to Michigan state laws have not been footnoted.

This draft starts to introduce details from other states and from Federal FOIA laws, and the process of working that detail in will take some time.

Federal FOIA law is considerably more complex in its day to day operations than the equivalent requests aimed at your average small Michigan city, and the Federal portions of this work need review by someone more familiar with all of that process.

Acknowledgements

Thanks to the following people who have helped with the manuscript or with the original columns from which the examples were drawn. All mistakes and errors are my own.

  • Alan Gutierrez for “git” help
  • Ben Connor-Barrie for Damn Arbor
  • Dan Romanchik
  • Dave Askins and Mary Morgan of the Ann Arbor Chronicle
  • James Pilcher
  • Jeff Irwin
  • John Roos, for coffee
  • Kai Petainen
  • Kathy Griswold
  • Kevin Schmidt
  • Kristin McMurray
  • Matt Hampel
  • Peter Honeyman, for keyboard help
  • Rich Retyi
  • Roger Rayle
  • Stefanie Murray for editing the AnnArbor.com “FOIA Friday” series
  • Vivienne Armentrout
  • The participants in the weekly #FOIAchat on Twitter

Colophon

  • MacBook (black), 2008, Mac OS X 10.6.8
  • vim version 7.2.108
  • Github
  • LeanPub
  • “Lobster Butter Love” coffee

Chapter 1: A sample FOIA request

The best way to write a better FOIA request is to see some examples of the system in action. Here are some basic principles to follow, with a sample letter that illustrates the process.

Be nice! Seriously. Be overly nice.

Get straight to the point in your request for records, and do not fill your request letter with polemics, anger, invective, or other extraneous rhetoric. Keep the request letter as simple as possible, to ensure that it is handled as a matter of routine and so that the clerk is not distracted by a stray argument.

Be pleasant and direct, especially in person. The staff of a public body has a lot of discretion in how quickly to answer your request, and you can avoid needless delays by not making yourself unwelcome.

The FOIA process can be adversarial, and you may have to disagree with the person answering your request and go over their head to a higher ranking official to make an appeal. It’s always good to keep cordial relationships with people who you are dealing with, even if they seem unreasonable, because angry diatribes never help your cause.

Who can request records

Any person can request records via the Michigan FOIA laws, except those who are incarcerated. [MCL 15.232(c)] This includes corporate “persons”, and persons who are not based in Michigan.

If you are requesting records from a police agency, it’s possible that you will be asked to provide positive identification before receiving records, so that they can check to see that you are not an incarcerated individual.

The various states have differing rules on who can access public records. The most restrictive include Virginia, where you must be a citizen of the state to access records. The U.S. Supreme Court has upheld this decision in the case of McBurney v. Young in 2013.

Forms and formats

Michigan FOIA laws do not specify a particular format that a request must be provided in. As long as a request for records is provided in writing, it should be handled by the government body as a FOIA request and passed along to the individual who coordinates FOIA responses. In practice, it is always best to contact the body that you are requesting records from and identify who the request should be addressed to.

Many public bodies will provide a pre-printed form on which a FOIA request can be filed. If such a form is provided, you should get a copy of it to ensure that any matter of fact details like phone numbers and addresses are copied correctly into your request.

You’re better off writing your own letter than using a pre-printed form. As noted in chapter 3, a carefully written request letter will minimize the costs of a request, and most provided forms do not include a key piece of language that can save you time, trouble, and money. Never sign a preprinted form that says “I agree to pay all fees associated with this request”.

Who to send your request to

You may find that the city clerk, city attorney’s office, communications office, or township supervisor is ultimately in charge of FOIA requests. If there is any question, contact the office of the highest ranking official and ask to whom a FOIA request should be addressed. The law refers to a “FOIA coordinator”, and if you send your request through the mails to that person, it should get through even if you don’t know their name.

It’s also likely that larger organizations have online FOIA information, and that may help as far as identifying the best point of contact. Examine or search the municipal web site with the search string “FOIA” or “Freedom of Information” to locate on-site information. You are looking for online forms, policies, costs associated with your request, and other information about how to contact the public body.

Which organizations are subject to the Michigan FOIA laws

Michigan cities, townships, public libraries, state agencies, transit agencies, municipal utilities, regional authorities, and other similar forms of government are subject to the Michigan Freedom of Information Act. The law [MCL 15.232(d)] specifically exempts the office of the governor and the judiciary, and an Attorney General’s ruling exempts legislators.

Non-profit organizations are not generally subject to Freedom of Information Act requests. They are, however, required to submit a Form 990 to the Internal Revenue Service, and may be able to provide that financial information upon request.

There is a small gray area in the Michigan law about non-profits that are subject to FOIA requests. If a non-profit gets the majority of its support from a public body, it may be subject to FOIA requirements. In practice, organizations that are not public bodies fight these FOIA requests, and you may need to go to court to win the records you want.

Outsourcing and public-private partnerships

If a public body has contracted out work to a private organization, they may only posess a fraction of the records which would normally be held by that public body if it was doing the work itself. This so-called “public private partnership” often results in the public body not providing as much information in response to a public records request as expected.

As an example, the Ann Arbor Downtown Development Authority contracts with Republic Parking for management of municipal parking garages. The DDA gets periodic reports from Republic of structure usage and income, but it does not hold the individual records of each person who parked or how full the structures were at any interval.

It’s not atypical to see a FOIA policy read like this from the Michigan Department of Community Health:

(D)ocuments which are possessed only by another agency or an entity under contract with the Department do not constitute the public records of the department.

Get it in writing

FOIA requests in Michigan must be made in writing. A verbal request for records is not considered a FOIA request, and the laws that ensure a timely response do not apply to verbal requests. If you really want to find something out through this process, you must write down your question.

Written requests include paper letters, facsimile transmissions, and electronic mail. Note that many organizations start their clock for having received an electronic request to the next business day. If time is of the essence, a hand-delivered paper request handed to the official in charge with a conversation about the urgency of the request may be your fastest approach.

Note that not every organization in the state has a formal procedure for handling FOIA requests by email, though they should. You may be asked to send in a paper letter or to transmit your request by fax.

Ask for records, not information or data

Michigan public bodies are not obliged to create new records in response to a FOIA request, and you should not expect that broad requests for information will be answered the way that you expect. Instead, seek out existing records (paper or electronic) that will help you determine the information you want. You may discover in the course of getting an answer to your first query that a second query is necessary; if so, repeat the process until you are satisfied.

This is one of many examples where a friendly relationship with individuals inside a public body can help your search for records. You are not entitled to a report if such a report does not yet exist; yet, if you get someone to run that report for you and tell you what it’s called, you can subsequently request it.

In your search for records, make note of any form numbers, codes, or other unique identifiers for documents. The process of doing a search for records goes much faster if you can provide an unambiguous unique key for the agency to search on. Broader queries take longer and may be more expensive.

The risk of your request being filed as spam

Make in plainly clear in your request letter that you are making a request under the act. You may get faster response via electronic mail if your Subject line also includes the word FOIA. Beware that some agencies with overly aggressive spam filtering on email may divert your message into their spam mailbox; it is always appropriate to follow up an email with a subsequent “did you get my message” phone call if a timely answer is required.

Formatting your request

If you are asking for more than one thing, number your requests.

If you expect that some of the records that you request will be redacted, e.g. for personal privacy reasons, specify that the agency should separate out the parts of the request that it can fulfill from those that it won’t to ensure that you get as much information as you can.

Limiting your costs

To save duplication costs, ask for your records in electronic format. This not only saves paper but can dramatically reduce the cost of fulfilling the request.

Set a maximum amount that you are willing to pay for your request, and do not agree to have the agency do the work for any more than that maximum unless you give a specific go-ahead. There may be something that you asked for that you thought should be easy to provide that turns out to be expensive, and you want to leave room for negotiation.

Always ask for a waiver of fees in the case where anything you do will be shared with the public. Michigan FOIA law provides for discretion by the public body whether or not to assess a fee, and many organizations provide responses for free when the time spent compiling a response is small enough to be considered routine, e.g. less than an hour of a clerk’s time. (See more on fees in Chapter 3.)

FOIA sample letter

To: City Clerk, City of Arbopolis

From: John Quackles, Arbopolis Newshawks

Subject: FOIA request: Controlled burn permits

Date: 1 December 2012

This is a request under the Michigan Freedom of Information Act.

Please provide the following records:

  1. A copy of each of the controlled burn permits issued by the City of Arbopolis during calendar year 2012.
  2. A copy of the city policies and procedures used to evaluate whether a controlled burn permit should be issued.
  3. For each of the controlled burn permits denied during calendar year 2012, a copy of the correspondence between the City and the applicant related to this permit denial.

Please provide all records in electronic format, to the extent that this is possible.

Please treat each of the above items as separate requests, and if one of them cannot be fulfilled for any reason, please continue with the others.

If any of the records are exempt from disclosure, please separate out the exempt from the non-exempt portions of those records.

I am willing to pay up to $10.00 to satisfy this request. If the costs for fulfilling the request are expected to exceed $10.00, please provide an itemized summary of expected costs before proceeding with the request. Please consider waiving these fees, as the results of this query will contribute to the public interest.

If there are any questions regarding this request, please contact me at 734-555-1212 or at jquackles@example.com.

You may send electronic records to my email address, jquackles@example.com. I will pick up any paper records in person.

Your prompt cooperation in fulfilling this request is appreciated!

thanks

John Quackles

Arborpolis Newshawks

100 S. Puddles St.

Arborpolis, MI 48100

More sample letters from MuckRock

If you are looking for a lot of sample FOIA letters to browse through, go no farther than MuckRock’s collection.

https://www.muckrock.com/foi/list/

MuckRock specializes in helping automate the FOIA submission and resubmission process, which is especially useful for Federal agencies that can be very slow at responding to requests. As of May 2013, they support Michigan FOIA requests to a small set of cities, and their collection of sample letters is a great set to sort through, both to copy the language and formatting of the letter as well as to be inspired to make requests of your own.

FOIA letter generator from the Reporter’s Committe for the Freedom of the Press

The Reporter’s Committee for the Freedom of the Press has a FOIA letter generator available at

http://ifoia.org

Like MuckRock, they will offer to send the letter for you, handle the responses, track communications and share your results. You can also use it as a simple letter generator without using their other services.

Sample letters at a2docs

A sample of FOIA related letters and documents can also be found on the Ann Arbor Area Government Document Repository.

http://a2docs.org

These are of particular interest to individuals filing FOIA requests in the state of Michigan, as there are example public records gathered there from a number of local and statewide sources.